II 

118TH CONGRESS 

1ST SESSION S. 399 

To place limitations on excepting positions from the competitive service, 

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 14, 2023 

Mr. KAINE (for himself, Mrs. FEINSTEIN, Mr. WARNER, Mr. CARDIN, Mr. 

VAN HOLLEN, Mr. SCHATZ, Mr. MARKEY, Ms. DUCKWORTH, Ms. 

HIRONO, Mr. KING, Mrs. SHAHEEN, Mr. CASEY, Mr. DURBIN, Mr. 

WHITEHOUSE, and Mr. CARPER) introduced the following bill; which was 

read twice and referred to the Committee on Homeland Security and 

Governmental Affairs 

A BILL 

To place limitations on excepting positions from the 

competitive service, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Saving the Civil Serv5 ice Act’’. 


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1 SEC. 2. LIMITATIONS ON EXCEPTING POSITIONS FROM 

2 COMPETITIVE SERVICE AND TRANSFERRING 

3 POSITIONS. 

4 (a) DEFINITIONS.—In this section— 

5 (1) the term ‘‘agency’’ means any department, 

6 agency, or instrumentality of the Federal Govern7 ment; 

8 (2) the term ‘‘competitive service’’ has the 

9 meaning given the term in section 2102 of title 5, 

10 United States Code; 

11 (3) the term ‘‘Director’’ means the Director of 

12 the Office of Personnel Management; and 

13 (4) the term ‘‘excepted service’’ has the mean14 ing given the term in section 2103 of title 5, United 

15 States Code. 

16 (b) LIMITATIONS.—A position in the competitive 

17 service may not be excepted from the competitive service 

18 unless that position is placed— 

19 (1) in any of schedules A through E, as de20 scribed in section 6.2 of title 5, Code of Federal 

21 Regulations, as in effect on September 30, 2020; 

22 and 

23 (2) under the terms and conditions under part 

24 6 of title 5, Code of Federal Regulations, as in effect 

25 on September 30, 2020. 

26 (c) TRANSFERS.— 


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1 (1) WITHIN EXCEPTED SERVICE.—A position in 

2 the excepted service may not be transferred to any 

3 schedule other than a schedule described in sub4 section (b)(1). 

5 (2) OPM CONSENT REQUIRED.—An agency 

6 may not transfer any occupied position from the 

7 competitive service or the excepted service into 

8 schedule C of subpart C of part 213 of title 5, Code 

9 of Federal Regulations, or any successor regulations, 

10 without the prior consent of the Director. 

11 (3) LIMIT DURING PRESIDENTIAL TERM.—Dur12 ing any 4-year presidential term, an agency may not 

13 transfer from a position in the competitive service to 

14 a position in the excepted service the greater of the 

15 following: 

16 (A) A total number of employees that is 

17 more than 1 percent of the total number of em18 ployees employed by that agency, as of the first 

19 day of that presidential term. 

20 (B) 5 employees. 

21 (4) EMPLOYEE CONSENT REQUIRED.—Notwith22 standing any other provision of this section— 

23 (A) an employee who occupies a position in 

24 the excepted service may not be transferred to 

25 an excepted service schedule other than the 


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1 schedule in which that position is located with2 out the prior written consent of the employee; 

3 and 

4 (B) an employee who occupies a position in 

5 the competitive service may not be transferred 

6 to the excepted service without the prior written 

7 consent of the employee. 

8 (d) OTHER MATTERS.— 

9 (1) APPLICATION.—Notwithstanding section 

10 7425(b) of title 38, United States Code, this section 

11 shall apply to a position under chapter 73 or 74 of 

12 that title. 

13 (2) REPORT.—Not later than March 15 of each 

14 calendar year, the Director shall submit to Congress 

15 a report on the immediately preceding calendar year 

16 that lists— 

17 (A) each position that, during the year cov18 ered by the report, was transferred from the 

19 competitive service to the excepted service and 

20 a justification as to why each such position was 

21 so transferred; and 

22 (B) any violation of this section that oc23 curred during the year covered by the report. 


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1 (e) REGULATIONS.—Not later than 90 days after the 

2 date of enactment of this Act, the Director shall issue reg3 ulations to implement this section. 

Æ 


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